Professor Mark Fondacaro writes….


I was recently invited by the Ohio Northern University College of Law to be a featured speaker at their Annual Law Review Symposium and asked to give a talk that would later be published as part of a special issue on “New Solutions to Old Problems:  A Practical Look at the Rebirth of Rehabilitation in the Criminal Justice System.”  I said I would agree if they let me ask several of my graduate students (Stephen Koppel, Megan O’Ttoole, and Joanne Crain) to participate as co-authors on a law review article entitled, “The Rebirth of Rehabilitation:  New Wine in New Bottles.”   They agreed and we have now completed the preliminary draft that is being edited by their law review and is expected to be published in the Summer of 2015.  Below is a summary of the article excerpted from the introduction of the preliminary draft which will no doubt be revised in the editorial process.  Footnotes are omitted.  The abstract and current draft of the forthcoming article can be found here.

         “These are indeed exciting times for those of us interested in the reform of our juvenile and adult criminal justice systems.  Innovation is in the air among legal scholars, behavioral scientists, and both legal and clinical practitioners.   Not many in the legal and scientific communities seem satisfied with the status quo.  Fresh thinking and new evidence-based practices generated within each of these professional domains are beginning to benefit from collaborative efforts at cross-fertilization and integration. 

          Increasingly, policy makers seem to be taking notice and are beginning to publicize their views on the need for reform.  Topics such as mass incarnation, racial bias in criminal justice, and wrongful conviction, which were not long ago highly controversial if not taboo, are being openly discussed in public by policy makers representing the entire political spectrum.  A confluence of social, scientific, legal, and policy influences is beginning to pave the way for the rebirth of rehabilitation in our criminal justice system. 

          However, to ensure a healthy delivery of rehabilitation in the 21st Century criminal justice system in America, we must rethink the substance and delivery of rehabilitation in a way that is best captured by David Wexler’s metaphor of “Pouring New Wine into New Bottles.”   The new wine represents evidence-based intervention strategies that draw on social ecological theories of human behavior to not only understand the social, psychological and biological drivers of crime, but to identify intervention strategies that are effective in preventing crime and reducing recidivism.  The new bottles represent a shift away from a backward-looking moral judgment model of criminal responsibility toward a more forward-looking approach to legal accountability that aims systematically at the individual prevention of criminal behavior and the promotion of public safety in the least restrictive and most cost-effective manner.

This article will provide an overview of the historical background of rehabilitation and punishment in the American criminal justice systems and will discuss social, psychological, legal, scientific, and policy considerations that have kindled the rebirth of rehabilitation in juvenile and criminal justice.  We will focus on the relationship between the juvenile and adult criminal justice systems and how reforms of juvenile justice and advances in the social,   behavioral and neurosciences have and should pave the way for reforms in how we judge criminal responsibility and respond to criminal behavior in the 21stCentury. 

         Section I provides an overview of the rise and fall of rehabilitation in the 20th Century in both the juvenile and adult criminal justice systems.  The ultimate limitations of both clinical models of intervention and legal conceptualizations of due process on which rehabilitation were based are emphasized.  

        Section II focuses on the consequences of the “death” of rehabilitation in both the juvenile and adults systems for individual offenders and society at large, culminating in our present levels of mass incarceration and racial disparities.  

         Section III focuses on the ingredients necessary for the healthy rebirth of rehabilitation, including recent advances in behavioral, neuroscience, and intervention research that are informing evidence-based intervention strategies that work—for both juveniles and for adults.  This “new wine” is being coupled with and poured into “new bottles” or legal procedures and policies aimed at promoting accuracy, fairness and effectiveness in legal decision making and sentencing.  

       Finally, section IV concludes with an integrative framework for ensuring that forward-looking, rehabilitative, consequentialist responses to crime supplant scientifically, socially, economically, and morally deficient retributive justifications for punishment in the American criminal justice systems.

Mark Fondacaro is currently a Professor of Psychology at John Jay College of Criminal Justice and a member of the International TJ in the Mainstream project. Before joining the faculty at John Jay, he was an Associate Professor of Psychology at the University of Florida and an Associate Director of the Levin College of Law’s Center on Children and Families. Professor Fondacaro has recently co-authored (with Christopher Slobogin) a book entitled “Juveniles at Risk: A Plea for Preventive Justice” that was published by Oxford University Press. He has authored numerous articles in both law reviews and behavioral science journals on issues of procedural justice, due process, family conflict resolution, and juvenile justice reform. 

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